Citation Nr: 1030218
Decision Date: 08/12/10 Archive Date: 08/24/10
DOCKET NO. 07-35 229 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to service connection for Wolff-Parkinson-White
Syndrome (WPW).
REPRESENTATION
Appellant represented by: John S. Berry, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sara Schinnerer, Associate Counsel
INTRODUCTION
The Veteran had active service October 1997 to February 2003.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) from a September 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Hartford,
Connecticut. In an October 2008 decision, the Board denied the
claim for entitlement to service connection for WPW Syndrome.
The Veteran then appealed to the United States Court of Appeals
for Veterans Claims (Court). In a December 2009 Order, the Court
granted a joint motion for remand (JMR), vacating the Board's
October 2008 decision and remanding the issue to the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran contends that her WPW Syndrome preexisted service and
was aggravated by service, or in the alternative, is related to
service.
The Veteran underwent a VA examination in February 2008 after
which the examiner opined that the Veteran most likely had
preexisting WPW, which was likely exacerbated during service.
The examiner further noted that there was no current objective
evidence of active WPW Syndrome.
In the October 2008 Board decision, the Board determined that,
despite the VA examiner's conclusion, the presumption of
soundness had not been rebutted in this case "because the
examiner provided no supporting rationale for his conclusion."
The opinion alone was not found to rebut the presumption. As
noted in the JMR, the RO's examination request specifically asked
the examiner to opine whether the Veteran's WPW Syndrome
preexisted service. The Board's finding that the examiner failed
to provide a supporting rationale rendered that opinion
inadequate for rating purposes. Once VA undertakes the effort to
provide an examination when developing a service connection
claim, even if not obligated to do so, it must provide an
adequate one. Barr v. Nicholson, 21 Vet. App. 311 (2007). On
remand, another examination is warranted. 38 C.F.R. § 3.159
(c)(4).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded an
appropriate VA examination in order to
determine the current nature and likely
etiology of the claimed WPW Syndrome. The
claims folder should be made available to
the examiner for review. Any indicated
evaluations, studies, and tests deemed to
be necessary by the examiner should be
accomplished.
Based on the examination and review of the
record, the examiner should address the
following:
Does the Veteran currently have WPW
Syndrome?
(a) Does the evidence of record clearly
and unmistakably show that the WPW
Syndrome existed prior to her entry onto
active duty?
(b) If the answer is yes, does the evidence
of record clearly and unmistakably show
that the preexisting WPW Syndrome was not
aggravated by service or that any increase
in disability was due to the natural
progression of the disease?
Please identify any such evidence with
specificity.
(c) If the answer to either (a) or (b) is
no, is it at least as likely as not that
the Veteran's WPW Syndrome had its onset in
service?
A complete rationale should be provided for
any opinion expressed.
2. Thereafter, readjudicate the issue on
appeal. If the claim remains denied, the
RO should issue a supplemental statement of
the case and afford the Veteran and her
representative an opportunity to respond.
Thereafter, the case should be returned to
the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).